ARTICLE
14 February 2018

Dissing A Competitor's Products On Social Media Could Be Commercial Speech, Court Finds

FK
Frankfurt Kurnit Klein & Selz

Contributor

Frankfurt Kurnit provides high quality legal services to clients in many industries and disciplines worldwide. With leading practices in entertainment, advertising, IP, technology, litigation, corporate, estate planning, charitable organizations, professional responsibility and other areas — Frankfurt Kurnit helps clients face challenging legal issues and meet their goals with efficient solutions.
A feud between competing hair care product sellers over comments made on Facebook has an important takeaway: just disparaging a competitor ...
United States Media, Telecoms, IT, Entertainment

A feud between competing hair care product sellers over comments made on Facebook has an important takeaway:  just disparaging a competitor on social media can constitute commercial advertising.

In Monat Global Corp. v. Mags Kavanaugh and California Beauty Studios, Inc., the plaintiff alleged that the defendants orchestrated an "internet smear campaign" by posting comments to Facebook that falsely disparaged the plaintiff's products, including by implying that the products can cause balding and scalp irritation.  The defendants argued that the comments were not advertising and therefore should not be subject to a Lanham Act claim. 

The court held that the social media posts constituted commercial speech even though the posts didn't actually promote any of the defendant's products.  The court reasoned that, "even a statement that expressly proposes no transaction might constitute commercial speech if included in an advertisement that mentions a particular product and if profit motivates the statement."

Even a statement that expressly proposes no transaction might constitute commercial speech if included in an advertisement that mentions a particular product and if profit motivates the statement.

http://tushnet.blogspot.com/2018/01/pure-disparagement-by-competitor-is.html

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More